MISTI MICHELLE=20
FRENCH, Appellants
D/B/A TIGERS=20
TRUCKING COMPANY, Appellees
This appeal =
involves a=20
summary judgment granted against Michael A. and Misti Michelle =
French in a=20
suit brought by them against Brian James Gill and Guiseppe V. =
Riccio,=20
doing business as Tigers Trucking Company. The same suit and very=20
closely-related questions were previously appealed by the Frenches =
to this=20
Court; a summary judgment rendered against them was reversed and =
remanded=20
for further proceedings. The controlling =
issue in both=20
of these appeals is the impact of limitations on the claim of the =
Frenches=20
against Gill and Riccio. I. Factual =
and=20
Procedural Background The claims of the =
Frenches=20
arose as the result of a motor-vehicle collision which occurred =
January=20
29, 2002. Initially, the Frenches filed suit in March 2003 in =
federal=20
court against several defendants (not including Gill or Riccio), =
all of=20
whom were citizens of states other than Texas. See 28 =
U.S.C.A. =A7=20
1332(a) (West 2006) (granting federal jurisdiction in cases where =
complete=20
diversity of citizenship exists). On January 14, =
2004, the=20
Frenches filed an amended pleading in the pending federal court =
action,=20
seeking permission to join Gill and Riccio (Texas residents); an =
order was=20
then entered on January 28, 2004, which permitted the filing of =
that=20
amendment to the pleadings. However, the federal court =
reconsidered that=20
order and withdrew its consent for the joinder of Gill and Riccio =
by order=20
entered on March 4, 2004. Suit was then filed by the Frenches =
against Gill=20
and Riccio in the district court of Wood County, Texas, on April =
29,=20
2004. II. The =
Rule on=20
Limitations On January 29, 2004 =
(between=20
the date the Frenches had been granted leave to include Gill and =
Riccio in=20
the federal lawsuit and the date of the entry of the order which =
withdrew=20
that permission), the two-year anniversary of the collision =
occurred. The=20
two-year anniversary of the collision is significant; after then, =
this=20
kind of tort claim would be barred under Texas's two-year statute =
of=20
limitations. See Tex. Civ. Prac. & Rem. Code Ann. =A7 =
16.003(a)=20
(Vernon Supp. 2007). A. Tolling =
Exception=20
to the Rule Although recovery =
on most=20
tort actions would be barred after the expiration of two years, an =
exception to that rule provides that a tolling of the statute of=20
limitations takes place if a party has filed a previous suit in a=20
different court and that action was dismissed because of lack of=20
jurisdiction, provided that the party refiled the suit in a court =
of=20
proper jurisdiction within sixty days after such dismissal. Tex. =
Civ.=20
Prac. & Rem. Code Ann. =A7 16.064 (Vernon 1997); Clary =
Corp. v.=20
Smith, 949 S.W.2d 452, 461 (Tex. App.--Fort Worth 1997, writ =
denied).=20
The cases also note that the statute is to be liberally construed =
to=20
effectuate its objective--relief from penalty of limitation bar to =
one who=20
has mistakenly brought his action in the wrong court. Tex. Civ. =
Prac.=20
& Rem. Code Ann. =A7 16.064; Clary Corp., 949 =
S.W.2d at=20
461. The Frenches maintain that because they had filed =
their=20
claim in federal court within two years of the collision, this =
tolling of=20
the statute of limitations occurred. B. The =
Exception to=20
the Exception However, Gill and =
Riccio=20
contest the application of that tolling statute by pointing out an =
exception to that exception. The tolling provision of Section =
16.064 of=20
the Texas Civil Practice and Remedies Code does not apply if the =
initial=20
filing was done with intentional disregard of proper jurisdiction. =
Parker v. Cumming, 216 S.W.3d 905, 909-10 (Tex. =
App.--Eastland=20
2007, pet. denied). Under that exception, if the record =
establishes=20
intentional disregard and that jurisdiction did not lie in the =
tribunal in=20
which the proceeding was originally filed, the original lawsuit =
did not,=20
as a matter of law, serve to toll limitations. Therefore, Gill and =
Riccio=20
maintain, if those conditions exist, and under these facts, the =
Frenches=20
would be time-barred from maintaining their action in state court. =
See Tex. R. Civ. P. 166a; see also Parker, 216 =
S.W.3d=20
908. III. What =
is the=20
Difference Between This Case and the First =
One? In the first =
judgment and=20
appeal, appellees/defendants argued before the trial court and =
here that=20
collateral estoppel or the full faith and credit clause ended the =
action.=20
Gill and Riccio had convinced the trial court at the first summary =
judgment hearing to find that rulings by the federal court (which =
included=20
a statement that "The additional Defendants that the Plaintiffs =
wish to=20
add are not indispensable and were clearly added solely for the =
purposes=20
of defeating diversity jurisdiction") conclusively proved that the =
savings=20
clause of Section 16.064 of the Texas Civil Practice and Remedies =
Code did=20
not toll limitations. We found to the contrary and reversed the =
summary=20
judgment granted Gill and Riccio. In the present =
appeal, the=20
sole issue is one that we mentioned in our previous opinion in =
this case=20
but could not then address: Whether the Frenches' statements in =
their=20
federal pleading seeking to add Gill and Riccio preclude the =
Frenches from=20
seeking to apply the exception to the limitations statute in the =
state=20
lawsuit. In other words, when they filed their pleadings in =
federal court,=20
did they plead themselves right out of court? Another motion for =
summary=20
judgment was filed by Gill and Riccio and this motion was granted. =
The=20
validity of that summary judgment is now before us. IV. =
Standard of=20
Review Summary judgment is =
proper=20
when the movant establishes that there is no genuine issue of =
material=20
fact and that he is entitled to judgment as a matter of law. Tex. =
R. Civ.=20
P. 166a(c); City of Houston v. Clear Creek Basin Auth., =
589=20
S.W.2d 671 (Tex. 1979); Baubles & Beads v. Louis Vuitton,=20
S.A., 766 S.W.2d 377 (Tex. App.--Texarkana 1989, no writ). =
When=20
reviewing a summary judgment, we take as true all evidence =
favorable to=20
the nonmovant and indulge in every reasonable inference and =
resolve any=20
doubts in the nonmovant's favor. Limestone Prods. Distrib., =
Inc. v.=20
McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, =
Inc. v.=20
Steel, 997 S.W.2d 217, 223 (Tex. 1999). When the movant =
seeks summary=20
judgment based on the expiration of limitations, the movant must=20
conclusively prove the bar of limitations. Jennings v. =
Burgess,=20
917 S.W.2d 790, 793 (Tex. 1996). The question on appeal is not =
whether the=20
summary judgment proof raises a fact issue with reference to the =
essential=20
elements of the plaintiff's cause of action, but whether the =
summary=20
judgment proof establishes the movant is entitled to judgment as a =
matter=20
of law. Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, =
736=20
(Tex. 1990). Because the movant bears the burden of proof, all =
conflicts=20
in the evidence are disregarded, evidence favorable to the =
nonmovant is=20
taken as true, and all doubts as to the genuine issues of material =
fact=20
are resolved in favor of the nonmovant. Nixon v. Mr. Prop. =
Mgmt.=20
Co., 690 S.W.2d 546 (Tex. 1985). If the nonmovant asserts =
that the=20
statute of limitations has been tolled, it becomes the movant's =
burden to=20
"conclusively negate the tolling provision's application" before =
summary=20
judgment may be awarded. Allen v. Intercapital Lodge Ltd. =
P'ship,=20
66 S.W.3d 351, 353 (Tex. App.--Houston [14th Dist.] 2001, pet.=20
denied). A. Basis =
Upon Which=20
This Summary Judgment Rests Gill and Riccio's =
motion for=20
summary judgment specifically states that they are entitled to =
summary=20
judgment based on limitations because the time had run on the =
Frenches'=20
lawsuit and that due to the statements contained in the Frenches'=20
pleadings in the federal suit, the statutory tolling provision did =
not=20
apply. B. Summary =
Judgment=20
Evidence Gill and Riccio =
attached a=20
number of documents as summary judgment evidence, but rely largely =
on the=20
federal pleading: "Plaintiffs' Second Amended Original=20
Complaint." That document was =
filed by=20
the Frenches in federal court January 28, 2004. In relevant part, =
it reads=20
as follows: 6. There =
will no=20
longer be diversity of citizenship between the parties to =
this=20
[federal] civil action with the joinder of Defendants, Brian James =
Gill=20
and Giuseppe V. Riccio, d/b/a Tigers Trucking Co. The amount in=20
controversy, exclusive of interest and costs, exceeds SEVENTY-FIVE =
THOUSAND AND NO/100 DOLLARS ($75,000.00). Jurisdiction will no =
longer=20
exist pursuant to 28 U.S.C. =A7 1392 and the Plaintiffs =
request that=20
this proceeding be transferred to the State District Court in Wood =
County,=20
Texas. Another piece of =
Gill and=20
Riccio's summary judgment evidence is the federal district court's =
"Order=20
Striking Plaintiffs' Second Amended Complaint." In relevant part, =
that=20
document includes the following language: On January 14, =
2004, the=20
Plaintiffs filed a motion for leave to file their second amended=20
complaint. The Court inadvertently granted said motion before the=20
Defendants in the case had adequate time to file their response. =
The=20
Court's Order (Docket No. 24) allowed the Plaintiffs =
leave to add=20
Brian James Gill and Giuseppe V. Riccio d/b/a Tigers Trucking Co. =
as=20
Defendants in this matter.
On January 30, =
2004, the=20
Defendants filed the instant motion to strike the Plaintiffs' =
second=20
amended complaint, noting that they [Defendants] were not afforded =
an=20
opportunity to respond. Because the Court ruled on the Plaintiffs' =
motion=20
before the expiration of the Defendants' deadline to respond, the =
Court=20
will reconsider the Defendants' motion to strike as if it were =
their=20
original response to the Plaintiff's motion for leave to =
amend.
After reconsidering =
the=20
Plaintiffs' motion for leave to amend and the Defendants['] motion =
to=20
strike, it is clear to the Court that the former should be denied. =
The=20
additional Defendants that the Plaintiffs wish to add are not=20
indispensable and were clearly added solely for the purposes of =
defeating=20
diversity jurisdiction. Further, there has already been extensive=20
discovery in this case: the Plaintiffs and Defendant Omang have =
served and=20
responded to interrogatories and requests for production; =
Defendant Omang=20
has served depositions on written questions to 17 of the =
Plaintiffs'=20
healthcare providers, all of which have been answered; Defendant =
Omang has=20
served a deposition on written questions to the Plaintiffs' former =
employer and has filed discovery pleadings regarding same with the =
Court;=20
the Plaintiffs and Omang have made not only their Initial =
Disclosures, but=20
also their Expert Disclosures, including production of all expert =
reports=20
and other materials.
As an equitable =
matter, the=20
Plaintiffs chose to seek damages from Omang and Mr. Henderson. =
They also=20
chose to pursue their claims in this Federal Court. To justify =
their=20
10-month-long delay in adding these nondiverse, dispensable =
parties to=20
their lawsuit, the Plaintiffs claim they just now discovered that =
they=20
need to join Mr. Gill and his employer, Giuseppe V. Riccio =
d/b/a=20
Tigers Trucking Co. However, the Plaintiffs and their counsel have =
known=20
of Mr. Gill, and all other witnesses to the accident, since =
January 30,=20
2002. In the subsequent two-year period, the Plaintiffs and their =
counsel=20
made no effort to contact Mr. Gill or his employer, much less join =
them in=20
this case. Meanwhile, Defendant Omang has expended a significant =
amount of=20
time and resources in discovery for this case and in preparing its =
defense=20
to this case.
Finally, the =
Plaintiffs have=20
not shown that they will be prejudiced or how they will be denied =
an=20
adequate judgment or an adequate remedy of their claims if =
Mr. Gill=20
and his employer are not joined as Defendants. Accordingly, the =
Court will=20
now vacate its previous order granting the Plaintiffs leave to=20
amend. C. =
The Frenches' Response to the Motion for Summary=20
Judgment As its primary =
summary=20
judgment evidence, counsel for the Frenches filed his own =
affidavit in=20
which he stated in relevant part as follows: 12. "As I stated =
during the=20
oral argument on the MSJ prior to the appeal in this case, I did =
not add=20
Gill and Riccio to defeat jurisdiction. In fact, I had only =
recently=20
learned of their involvement and needed to file suit against them =
to toll=20
the statute of limitations and preserve Plaintiffs' =
rights." 13. "Further, the =
case=20
against Gill and Riccio was based on the same nucleus of operative =
facts=20
as the one against Henderson and Omang and I sought to avoid =
piecemeal=20
litigation of this matter. Filing it in federal court, whether it =
defeated=20
jurisdiction or not, was to keep the case as one." 14. "Moreover, I =
did not add=20
Gill and Riccio to defeat federal jurisdiction. I chose to file =
this case=20
initially in federal court as there was diversity of the initial =
parties.=20
I would not seek to intentionally disregard the proper =
jurisdiction in a=20
case I filed in federal court." 15. "Initially, I =
thought=20
that if jurisdiction was defeated, that the entire case would be=20
transferred to Wood County. I was relying upon the =
Freeport-McMoRan,=20
Inc. v. KN Energy case and thought that the federal court =
might have=20
been able to retain jurisdiction had it wanted to, but that the =
decision=20
would be up to the federal court. In the event the federal trial =
court=20
decided it did not want to retain jurisdiction, I requested a =
transfer to=20
state court." 16. "Indeed, in =
Plaintiffs'=20
Rejoinder to Defendants' Reply to Plaintiffs' Response to =
Defendants'=20
Motion for Summary Judgment, Plaintiffs argued that diversity was =
not=20
defeated as it was determined at the time of filing a lawsuit, =
based on=20
the same interpretation of Freeport-McMoran, Inc. v. K N =
Energy,=20
Inc., 498 U.S. 426, 111 S.Ct. 858, 860 (1991). My =
interpretation was=20
not an unreasonable one. Even the treatise O'Connor's Federal =
Rules *=20
Civil Trials (2003) states, relying upon =
Freeport-McMoran=20
that 'Diversity is determined as of the date the action is =
commenced.' See=20
page 83, a copy of which is attached hereto as Exhibit=20
A-5.["] 17. "I did not, in =
any event,=20
purposely ignore jurisdiction by filing in federal court. That is =
where=20
the case was pending originally and since the second set of =
Defendants to=20
be added were involved in the same accident, it only made sense to =
add=20
them to the lawsuit existing at the time, whether that meant the =
case=20
would remain in federal court or be transferred to state=20
court." 18. "I requested a =
transfer=20
to state court in the event the federal court determined that =
jurisdiction=20
was no longer appropriate in federal court. This was to conserve =
judicial=20
resources and keep the case, which had already been on file for 10 =
months=20
and for which most of the discovery was completed." 19. Defendants make =
the=20
following statement in their Motion for Summary Judgment at page 2 =
which=20
is patently false and without basis in fact: 'Clearly, Plaintiffs =
added=20
Mr. Gill and Mr. Riccio to destroy diversity jurisdiction.' =
Defendants do=20
not cite to any evidence to support this statement. Further, as =
explained=20
above, this is illogical since Plaintiffs were the ones who chose =
to file=20
in the federal court to begin with. It does not make sense that =
some 10=20
months later, well into the lawsuit, that Plaintiffs would then =
seek to=20
destroy the jurisdiction they chose."
. . . =
. 21. "Judge Steger's =
comment,=20
which was dicta, that Plaintiff's addition of Mr. Gill =
and Mr.=20
Riccio was 'for the purposes of defeating diversity jurisdiction,' =
was not=20
based on any findings of fact. No testimony was taken and there =
was no=20
basis upon which to make this comment. As demonstrated above, this =
is=20
illogical." D. The =
Frenches'=20
Argument The Frenches argue =
that the=20
language that they chose to use in their motions to the federal =
court did=20
not conclusively show that they intentionally disregarded proper=20
jurisdiction when they filed the first lawsuit. As previously =
discussed,=20
under that exception to the application of the tolling statute, if =
the=20
record affirmatively establishes that jurisdiction did not lie in =
the=20
tribunal in which the proceeding was originally filed, the =
original=20
lawsuit did not, as a matter of law, serve to toll limitations. =
Therefore,=20
the Frenches were time-barred from recovering from Gill and Riccio =
in=20
state court. There are three =
separate=20
aspects to the Frenches' argument: 1) The pleadings in =
the=20
federal case cannot be classified as "judicial admissions"; thus, =
the=20
pleadings are not conclusive proof that the Frenches were aware of =
the=20
impact of what they were doing. As a result, summary judgment was=20
therefore improper. 2) There is =
"reliable=20
authority" to support the Frenches' counsel's belief that =
diversity would=20
not be destroyed by adding the two nondiverse parties. 3) The Frenches =
provided=20
summary judgment evidence in which their counsel stated that they =
did not=20
intentionally file the case in the wrong court in an effort to =
destroy=20
jurisdiction. 1. Was =
There a=20
Judicial Admission? Initially, we will =
look at=20
whether the document itself constitutes a judicial admission. The =
general=20
language involving judicial admissions states that: Assertions of fact, =
not plead=20
in the alternative, in the live pleadings of a party are regarded =
as=20
formal judicial admissions. A judicial admission that is clear and =
unequivocal has conclusive effect and bars the admitting party =
from later=20
disputing the admitted fact. Holy Cross =
Church of God=20
in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (citations=20
omitted). In a more typical =
scenario,=20
courts acknowledge that although pleadings generally do not =
constitute=20
summary judgment proof, if a plaintiff's pleadings contain =
judicial=20
admissions negating a cause of action, summary judgment may =
properly be=20
granted on the basis of the pleadings. Commercial Structures =
&=20
Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d =
827,=20
835 (Tex. App.--Fort Worth 2006, no pet.); see Brooks v. Ctr. =
for=20
Healthcare Servs., 981 S.W.2d 279, 283 (Tex. App.--San =
Antonio 1998,=20
no pet.). All of those =
situations,=20
however, explain the use of pleadings by a party in the suit in =
which they=20
were filed. This situation is, however, different. The pleading is =
not=20
from this case. It is not being used to prove or disprove the =
cause of=20
action based on the Frenches' allegations or statements of fact =
about the=20
cause of action. It is used by the Frenches to prove that there =
was a=20
prior case in which the new defendants had been sued; thus, when =
those=20
defendants were dropped, the tolling provision allowed the =
Frenches to=20
bring suit in state court. It is then used by Gill and Riccio as =
proof=20
that the Frenches knew that their addition of Gill and Riccio as =
new=20
defendants would destroy diversity and nevertheless added them in; =
therefore, the exception to the tolling provision applies, and the =
Frenches' state lawsuit is untimely brought. As Gill and Riccio =
point out,=20
a number of facts were pled by the Frenches in the federal =
complaint,=20
including the names and citizenship of the defendants. Based on =
those=20
factual statements, the Frenches then stated that no diversity of=20
citizenship would continue to exist between the parties and asked =
the=20
federal court to transfer the proceeding to state district court.=20
The statement that =
diversity=20
would be destroyed is not a factual statement. Rather, it is a =
legal=20
statement or conclusion based on stated facts. As such, it does =
not fit=20
within the definition of a judicial admission. The Frenches' =
counsel goes=20
further to maintain that the statement in federal court pleadings =
could=20
not possibly be a judicial admission because it is not a live =
pleading (in=20
this lawsuit). That aspect of his argument is not persuasive. The =
facts=20
stated in the pleading are not contested and were not part of =
alternative=20
pleadings. The fact that the federal lawsuit is no longer being =
pursued is=20
not a reason to conclude that the facts stated have no further =
usefulness=20
to prove the Frenches' intent and knowledge when causing them to =
be=20
filed. In applying this =
particular=20
statute, as pointed out by Gill and Riccio, one primary way to =
prove=20
intentional disregard is by looking at the face of the pleadings =
filed in=20
the first lawsuit. See Gordon v. Staudt, No. =
03-02-00768-CV, 2004=20
Tex. App. LEXIS 1685, at *9 (Tex. App.--Austin Feb. 20, 2004, pet. =
denied); Parker, 216 S.W.3d at 910; Williamson v. =
John Deere=20
Co., 708 S.W.2d 38, 39-40 (Tex. App.--Tyler 1986, no writ) =
(all using=20
the pleadings from the prior lawsuits to determine =
limitations--and the=20
application of the exceptions--under this section). Accordingly, =
although it does=20
appear that the pleading did make certain formal judicial =
admissions of=20
fact, the part upon which Gill and Riccio rely is not an admission =
of=20
fact; it is, rather, a statement of the application of the law to =
those=20
facts. It is very clear, =
however,=20
that the pleading is a statement by the Frenches' counsel =
reflecting his=20
understanding that his action in including Gill and Riccio as =
defendants=20
would destroy diversity; the case thereafter lacking diversity of =
parties,=20
the jurisdiction of the federal court to hear the suit would be=20
destroyed. Although the =
statement is not=20
a "fact" as to actual jurisdictional authority, it may well be a =
"fact" as=20
to whether the Frenches filed their action against Gill and Riccio =
in=20
federal court with intentional disregard of its jurisdiction to =
hear the=20
case. E. =
Determining=20
Intent Even though the =
pleading=20
filed by the Frenches in federal court is not a judicial =
admission, it=20
nonetheless provides summary judgment evidence of much more than =
simply=20
the date of its filing. The question before us is whether the =
Frenches'=20
counsel's unequivocal and clear statement that adding the new =
players=20
would defeat jurisdiction conclusively shows that he made the =
filing with=20
intentional disregard of the proper jurisdiction. On its face, it =
does. The=20
filing of the petition which included nondiverse parties clearly =
sets out=20
the facts defeating diversity and then correctly states the legal =
impact=20
of those facts. It then goes on to, based on the termination of =
the=20
court's jurisdiction, request the federal court to transfer the =
proceeding=20
to state court. The Frenches argue =
that=20
because they have provided summary judgment evidence by their =
counsel's=20
affidavit, they have sufficiently explained the motive for filing =
in=20
federal court to enable them to avoid summary judgment. Looking at =
counsel's affidavit critically, it states that he did not intend =
to add=20
the additional parties in an effort to defeat jurisdiction; =
rather, that=20
he did so to toll limitations and that he had thought that if =
jurisdiction=20
was defeated, the federal court could nonetheless either transfer =
the case=20
to state court or retain jurisdiction. He states repeatedly in =
multiple=20
paragraphs that he did not ignore jurisdiction. The Frenches' =
counsel's=20
affidavit does not directly address the dispositive issue. It =
answers=20
another and different question: whether he had the intention to =
defeat=20
jurisdiction. Counsel's affidavit states that he did not intend to =
defeat=20
jurisdiction. The question here =
is not=20
whether he intended to defeat jurisdiction but whether he filed in =
conscious disregard of proper jurisdiction. Those are different=20
propositions. Although these arguments bear some real similarity, =
they do=20
not intersect. The Frenches' =
counsel's=20
affidavit also stated that he had believed that the federal court =
might=20
have been able to retain jurisdiction over the entirety had it =
chosen to=20
do so. That was a mistake in an understanding of the law, not a =
mistake of=20
fact. As pointed out by the Eastland court in Parker, the =
issue=20
focused on the question of whether the record showed that claimant =
had=20
made "a good faith mistake" by initially filing in a (federal) =
court=20
without jurisdiction over the claim. In its analysis, =
the=20
Parker court recognized that Parker's construction of the =
section=20
that he claimed provided jurisdiction was incorrect, and that =
whether=20
Parker was conscious of this was immaterial, due to the fact that =
all=20
persons are presumed to know the law and are charged with =
knowledge of=20
statutory provisions.
In this case, the =
Frenches'=20
counsel argues that he misunderstood the import of the law, and =
that a=20
question of fact exists as to whether he simply made a mistake or =
intended=20
to defeat the jurisdiction of the federal court. We conclude that =
this is=20
a distinction without a difference. He is charged with knowledge =
of the=20
law, and there is no suggestion that there were any mistaken=20
understandings of fact (such as the residence of the parties or =
the situs=20
in which an event occurred) that could support any suggestion of =
mistaken=20
application of that law. The only evidence on point thus shows =
that his=20
filing was made in intentional disregard of the jurisdiction of =
the=20
federal court. Because there was intentional disregard of the=20
jurisdiction, the tolling does not occur and limitations barred =
the=20
prosecution of the lawsuit. We affirm the =
judgment of=20
the trial court. Bailey C. =
Moseley Justice Date Submitted: =
April 2,=20
2008 Date Decided: =
April 16, 2008=20
1. French v. Gill, 206 S.W.3d 737 =
(Tex.=20
App.--Texarkana 2006, no pet.).=20
4. 5.